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Super injunctions and Twitter

Recent stories in the UK, including 'super injunctions' and alleged phone-tapping, raise questions about the news media and privacy legislation. Is a whole new world of 'hidden' information opening up?

The United Kingdom has never created a comprehensive statutory privacy law, with one of the prime difficulties being in the actual defining of 'privacy'. With the UK being a signatory of the European Convention it has since 1966 been possible for UK citizens to complain direct to the appropriate Council of Europe bodies about alleged infringement of Convention rights. However, with the arrival of the UK Human Rights Act in 1998, for the first time Convention rights became protected by UK courts, dispensing with the need for claimants to journey to Strasbourg (although this possibility ultimately remains in place). Whilst UK courts are not bound by the judgments of the Strasbourg court, section 2 of the Human Rights Act requires that the UK courts do take into account any judgment of Strasbourg when Convention rights are under consideration.

A series of privacy defeats in the English courts, most notably perhaps the award, in 2008, to Max Mosley of £60,000 in damages by the High Court for infringement of his Article 8 rights (Article 8 covers the protection of private and family life) have led newspapers to claim that their Article 10 freedom of expression rights were effectively being usurped by the courts in favour of claimants Article 8 rights. The emergence of so-called super-injunctions that prevent the media from reporting a story or indeed mentioning the existence of such an injunction has further infuriated the English news media.

Yet far from being down and out the traditional news media seems to be firmly back in the driving seat and there are possible consequential implications for the UK as a signatory of the European Convention.

Max Mosley recently returned to the courts, this time to the European Court of Human Rights in Strasbourg, to be told that his argument that he should have received prior notification of publication of the story by the newspaper was to be rejected by the Court.

The day before Mosley's claim was dismissed, an unidentified Twitterer, widely believed to be a newspaper journalist, had listed a number of prominent people all of whom had allegedly obtained super injunctions in the English courts. The name of Ryan Giggs appeared on the list. The Twittersphere rapidly became alive with tweets concerning Giggs and the Scottish Sunday newspaper, the Sunday Herald, apparently not bound by the injunction Giggs had obtained, chose to print a picture of Giggs with his eyes blacked out on its front page. Whether the UK Attorney-General will seek to unmask the mystery Twitterer who tweeted the super injunction names remains to be seen.

If all this recent privacy related activity will lead to the demise of Article 8 use in the UK, it would be to the undoubted joy of the traditional news media. Prime Minister David Cameron has been a critic of aspects of the European Convention, especially so with its incorporation into UK law via the Human Rights Act 1998, wishing to replace it with some form of constitutional mechanism. He has said that following the super injunction fiasco the UK Parliament should now perhaps re-visit the issue of introducing a statutory privacy provision, and if this were to happen then clearly Article 8 may become redundant, with of course wider implications for the European Convention and UK as a signatory of it.

Alan McKenna is an Associate Lecturer in the Law School at the University of Kent. For the last two years he has been a Visiting Lecturer for the Law School at City University, London. He is the author of a (soon to be published) book 'A human right to participate in the Information Society'.